Rudy Kurniawan's last-gasp effort to challenge his conviction for wine counterfeiting has been shot down by the same federal court judge who presided over his eight-day trial in 2013. Forty months remain on Kurniawan’s prison sentence.

A three-judge appellate panel had already denied Kurniawan's previous appeal two years ago. Kurniawan then contended, in a habeas corpus petition filed in March 2017, in the original trial court, that one of his lawyers had not properly defended him during lengthy pre-trial proceedings in 2013.

But in his ruling released this week, District Judge Richard Berman ruled that the experienced trial lawyer in question, Michael Proctor, had not been neglectful of his client's defense.

At issue was the FBI agents’ search of Kurniawan’s house moments after he was arrested five and a half years ago. The agents had an arrest warrant in hand but not a search warrant. Yet they spent at least 15 minutes roaming the house, where they found extensive evidence of a wine-counterfeiting operation.

The agents based their search on a claim that they needed to conduct a "protective sweep" of the premises to ensure that nobody was lurking who might harm them and that evidence would be preserved, particularly since Kurniawan's mother was also living in the house. Several cases of wine were visible from the front door. Only later that day did the FBI secure a search warrant.

In Kurniawan's habeas corpus petition, New Jersey lawyer Michael Pedicini argued that Proctor should have requested a pre-trial evidentiary hearing at which FBI agents and possibly other witnesses could be questioned about the search. Any evidence ruled to be "tainted" might have been suppressed and could not have been shown to the jury.

By not requesting the suppression hearing, according to Kurniawan's petition, Proctor "had no opportunity to examine whether the agents' search was legitimately a 'protective sweep' or merely a pretext for a limitless, warrantless search of the property so that agents could gain substantial incriminating evidence against Kurniawan."

In last week's ruling, Judge Berman did not deny that the house search was illegal. Neither had the appellate panel that heard Kurniawan's first appeal in 2015. Those judges assumed that the search was illegal. But they found no fault with Berman's pre-trial ruling that, after extensive arguments, prosecution and defense lawyers had reasonably concluded that there was no need for an evidentiary hearing focused on the house search. Such a hearing would have been called for only if the facts of the search were in dispute.

And they were not, argues Jason Hernandez, the former assistant U.S. attorney who prosecuted Kurniawan. "An issue of fact might occur, say, in a traffic case where one witness says the traffic light was red, and another witness says it was green," Hernandez told Wine Spectator. "Then you would need an evidentiary hearing to hear testimony. The judge then has to decide what the facts are. The Kurniawan case defense could have asked for such a hearing, but Proctor made the strategic decision that the facts had already been described accurately."

Judge Berman noted that, after both sides had "met and conferred, they concluded that there were no material facts relating to the search in dispute." Instead, they agreed on oral arguments before Berman to settle the matter. "The court cannot fault (or second guess) defense counsel for his strategic decision to waive the evidentiary hearing and pursue oral argument," opined Berman. In the end, the jury was shown a vast array of counterfeiting materials that were found in Kurniawan's home. (Neither Michael Proctor nor Michael Pedicini responded to multiple requests for comment on the latest ruling.)

After five years of legal activity and several sets of lawyers in his case, Kurniawan has run out of options. In denying Kurniawan's petition, Berman concluded: "The clerk of the court is respectfully requested to close this case."

Kurniawan, who came to this country on a student visa sometime in the mid-1990s and remained in the country illegally after being denied asylum in 2003, is currently serving a 10-year sentence at Taft Correctional Institution in California. Upon his release in January 2021, Immigration and Customs Enforcement (ICE) agents are expected to deport him to his hometown of Jakarta, Indonesia.

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